Articles

The Law’s Majestic Equality?

The Distributive Impact of Judicializing
Social and Economic Rights
Daniel M. Brinks and Varun Gauri

While many find cause for optimism about the use of law and rights for progressive ends, the academic literature has long been
skeptical that courts favor the poor. We show that, with the move toward a robust “new constitutionalism” of social and economic
rights, the assumptions underlying the skepticism do not always hold. Our theories must account for variation in the elite bias of law and
litigation. In particular, we need to pay closer attention to the broad, collective effects of legal mobilization, rather than focusing narrowly
on the litigants and the direct benefits they receive. We support the claim by showing that litigation pursued in legal contexts that create
the expectation of collective effects is more likely to avoid the potential anti-poor bias of courts. On the other hand, policy areas
dominated by individual litigation and individualized effects are more likely to experience regressive outcomes. Using data on social and
economic rights cases in four countries, we estimate the potential pro-poor impact of litigation by examining whether the poor are over-
or under-represented among the beneficiaries of litigation. We find that the impact of courts is positive and very much pro-poor in India
and South Africa, and slightly negative in Indonesia and Brazil. Overall, we challenge the tendency in the literature to focus on the direct
effects of litigation, find that the results of litigation are more positive for the poor than the conventional wisdom would lead us to expect,
and offer an explanation that accounts for part of the variation while raising a number of questions for future research.

A
Supplementary materials provided by the authors are
listed alongside a permanent link that precedes the
references section.
Daniel M. Brinks is Associate Professor of Political Science
at the University of Texas at Austin, specializing in
Comparative Politics and Public Law (DBrinks@law.
utexas.edu). His current project explores constitutional and
judicial transformations in Latin America since the 1970s.
Varun Gauri is Senior Economist with the Development
Research Group of the World Bank. His current research
examines compliance with human rights court orders in
developing countries. (vgauri@worldbank.org). The
authors would like to thank Yanran Chen, Nara Pavão,
and Víctor Hernandez Huerta for providing excellent
research assistance on the distribution of beneficiaries. They
are also grateful for the extensive, detailed, and insightful
feedback provided by the editor and the anonymous
reviewers, who went far beyond the norm in helping us
strengthen the piece, to Dan Brinks’ colleagues at the
University of Texas, who provided valuable feedback and to
Varun Gauri’s colleagues at the World Bank. The project
enjoyed the support of the Nordic Trust Fund and the
Research Support Budget at the World Bank. The findings
and opinions expressed in this piece are those of the authors
alone and do not necessarily reflect the views of the
World Bank.
doi:10.1017/S1537592714000887
© American Political Science Association 2014
s constitutions increasingly set out to protect social
and economic rights, it may be time to revisit Anatole
France’s famous critique of the law: “Another source
of pride, to be a citizen! For the poor it consists in . . .
laboring under the majestic equality of the laws, which
prohibit the rich and the poor alike from sleeping under
bridges, begging in the streets and stealing bread.” 1
At the end of the nineteenth century it might have been
easy to conclude that formal equality before the law
was just another way to protect and entrench privilege
while denying substantive justice. As Judge Richard
Posner famously said in reference to the United States
Constitution, citizenship rights then were largely
“a charter of negative rather than positive liberties.” 2
As recently as the 1970s, Morton Horwitz could say
that the rule of law “creates formal equality . . . but it
promotes substantive inequality . . . . By promoting
procedural justice it enables the shrewd, the calculating, and
the wealthy to manipulate its forms to their advantage.”3
As a result of the law’s proceduralism, its lack of sub-
stantive notions of social justice and equality, and its
perceived bias in favor of the already powerful, Horwitz
could legitimately question how it was possible that
“a Man of the Left” could see the rule of law as an unqual-
ified human good. In this view, the quest for substantive
social justice will rarely run through constitutions or the law.
At the beginning of the twenty-first century, however,
there have been changes in global constitutionalism that
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Articles | The Law’s Majestic Equality?
seem explicitly designed to benefit the disadvantaged.
These changes have led to an explosion of litigation and
the judicialization of the politics of social provision that
appear, on their face, to seek to expand the supply of
goods that are important to the poor, such as health care,
education, and social provision more generally. At this
point, then, it seems important to examine whether and
to what extent this change in the apparent nature of
constitutionalism can actually deliver on its promise; and
whether and to what extent the increasing involvement
of courts in social policies actually improves matters for
the poor. For simplicity, we call litigation that dispro-
portionately benefits the poor “progressive,” while if the
poor are underrepresented among beneficiaries, we call
the litigation “regressive.” We use here the results of
a multi-country survey of social and economic rights
(SER) litigation to explore the extent to which the poor benefit
from this activity. Our analysis suggests that the literature so far
has been far too focused on the direct, individual effects of
litigation to adequately gauge its impact on the overall
distribution of the gains. If we better theorize the impact of
judicial interventions on SER, expanding our vision beyond
the immediate direct effects of those interventions, we may
well find that the SER judicialization that has become a feature
of twenty-first century constitutionalism is less biased toward
the middle class than many have suggested.
We outline a conceptual, methodological and theoret-
ical approach designed to better understand the politics of
the new social rights constitutionalism. We first describe
the contours of the new constitutionalism and the legal
mobilization it has triggered and outline the theoretical
reasons to be skeptical or optimistic about the distributive
effects of legal mobilization, as well as the gaps in the
empirical research on these effects. In the main theoretical
section that follows we lay out in some detail the
distinction between individual and collective effects that
animates much of our empirical discussion, and explain
why the expectation of collective effects changes the
litigant calculus in a way that should lead to more pro-
poor outcomes. The subsequent empirical section relies
primarily on a tabulation of the beneficiaries of SE rights
mobilization in Brazil, India, Indonesia, and South
Africa, a summary discussion of Nigeria, and on narrative
descriptions of the motivations and goals of the main
actors involved in that mobilization.4 We then summa-
rize the findings and implications, before turning to
a conclusion that raises questions for further research and
develops the theoretical, normative, and practical impli-
cations of social rights constitutionalism, as practiced
today. Our main goal here is to lay bare some of the
assumptions on which most distributive critiques of SE
rights litigation are based, suggest when they might or
might not hold, and outline the beginnings of a research
agenda on the progressive potential of litigation and
enforceable social and economic rights.
376 Perspectives on Politics
The New Social Rights
Constitutionalism
It may be true, as Posner argued, that “the men who
wrote the [US] Bill of Rights were not concerned that
government might do too little for the people but that
it might do too much to them,” but the vast majority of
new constitutions are moving from a purely negative
conception of rights to a more positive one. Social and
economic rights have been creeping into constitutions for
decades. David Law and Mila Versteeg present data
showing a dramatic increase in the number of civil
and political rights, as well as social and economic rights
expressly protected in constitutional texts, since the
1960s.5 The trend begins with a set of post-colonial con-
stitutions, but the sharpest increase—especially in the
protection of social and economic rights—comes after the
collapse of the Soviet Union in 1990. The new constitu-
tionalism is sufficiently preoccupied with rights, over
and against questions of structure and procedure, that it
can be described as rights constitutionalism and, for
much of the developing world in particular, social rights
constitutionalism.6
David Bilchitz, for example, contrasts the Western
“tradition of focusing on civil and political rights, and the
ideal of ‘liberty,’” with the new constitutions of the Global
South. For the latter, he writes, “matters of economic
distributive justice . . . are central.”7 The new constitutions
are, in effect, seeking to push beyond a model of law and
constitutions that protects mainly the freedom to be
secure in one’s person and property—should one happen
to own any. They typically include a more robust set of
obligations on the government to create the conditions
for substantive equality, a dignified existence, and the
effective exercise of democratic citizenship. In places as
disparate as the post-Soviet countries, South Africa,
Brazil, and Colombia, constitutions at least purport to
set up entitlements for the poor that go far beyond the
mere freedom to pursue one’s interests unhindered.
Under these new constitutions, citizenship now means
that “the rich and the poor alike” can claim guarantees of
adequate food, health care, education, a minimum standard
of living, and a decent place to live, turning France’s
mordant, iconic statement on its head.
Nor have these rights remained mere parchment
promises. Progressive activists around the world have
seized on the judicial enforcement of social and
economic rights as a powerful new tool in the politics
of social provision, a change that is reflected in the
explosion of academic interest in the “judicialization
of politics.” 8 Samuel Moyn has argued, not necessarily
with approval, that human rights have become “The Last
Utopia”—one of the few remaining political ideals that
promise a more just society.9 When the Thatcher and
Reagan revolutions and the Washington Consensus brought
welfare states under attack in much of the world, when the
utopian aspirations of the Second World ended with the
fall of the Berlin Wall, when neoliberal orthodoxy
governed the ideological landscape, the language of rights
enshrined in constitutions and treaties seemed to offer
some leverage for protecting and extending social pro-
vision to the poor, especially through litigation.10 Social
rights constitutionalism, and its judicialization, expanded
the political opportunity structure for the left, which
otherwise found itself frozen out of the debate about the
proper role of the state in moderating the effects of the
market and providing material goods.
Twenty or thirty years into this process, judicial inter-
ventions on behalf of SE rights cannot be dismissed as
tangential to the politics of welfare. In one Brazilian state
alone, Rio Grande do Sul, right to health cases grew from
1,126 in 2002 to 17,025 in 2009; that same year the
highest non-constitutional court in Brazil heard nearly
six thousand such cases,11 resulting in large percentages
of state medication budgets being allocated by courts.12
The Indonesian Constitutional Court issued a series of
opinions from 2004–2006 that doubled budget alloca-
tions to the education sector—redirecting about five
percent of the entire national budget.13 In 2004 the South
African Constitutional Court required a recalcitrant
Mbeki government to launch a major program to prevent
the transmission of HIV from mothers to infants, likely
averting tens of thousands of HIV infections.14 In India,
the courts have issued numerous consequential rulings on
the constitutional rights to health care, education, housing,
the environment, nutrition, and labor.15 Even in Russia
people turn to the courts by the hundreds of thousands in
efforts to secure pensions.16 The phenomenon is wide-
spread, deeply affecting health care, education, and even
that most fundamental of classical liberal rights, the right to
property, in many countries around the world.17
Of course, we should not be surprised to find that
courts have not managed anywhere to create a new utopia
for the poor. Even what is probably the most celebrated
court in the world in this respect, the South African
Constitutional Court, has come under fire recently for
failing “to take seriously and to operationalize within its
judgments the issue of structural poverty.”18 South African
courts have also been less than successful in dealing with
problems of land redistribution or sexual violence. Even in
dealing with SER, courts have sometimes turned them
from positive entitlements into purely negative rights.
Perhaps the most striking example of this is Victoria (City)
v. Adams,19 in which the courts of British Columbia
determined, under the right to housing, that the city
government could not prevent homeless people from
putting up temporary shelters on public property, given
the absence of adequate public shelter elsewhere. But the
very fact that courts can be criticized for failing to address
structural poverty adequately or improve the lack of
housing for the homeless demonstrates how vast the
expectations now are.
Given the importance of rights constitutionalism to
the distribution of state resources, welfare state politics,
and the aspirations of the left in many countries, it is all
the more urgent to return to a slightly modified version
of the question Horwitz posed forty years ago: Is the
constitutionalization and judicialization of SE rights an
unalloyed human good? Or does it remain the case that
the law “enables the shrewd, the calculating and the
wealthy to manipulate its forms to their own advantage,”
thus promoting substantive inequality in the end?20 It is
true, of course, that constitutional aspirations may be
pursued through many means that have nothing to do
with courts and law, and there is perhaps less controversy
about the value of these approaches, although it is possible
that the language of rights constrains the politics of
provision in different ways that are worth exploring
empirically.21 Here, however, we limit our view to the
effects of judicial interventions, which play a large role
in many strategies to make SER effective.
The literature has presented many reasons to be
skeptical of the law as an instrument for the weak against
the powerful. Economic, social, and procedural barriers
prevent the great majority of poor people from making
claims in courts;22 accumulated experience gives the rich
and the powerful advantages in the courtroom;23 patterns
of judicial recruitment and retention, which reflect prevail-
ing configurations of political power, incline the attitudes
and calculations of judges toward the status quo;24 and
without the active support of elected officials, opponents
can easily limit and undermine the implementation of any
rulings that might challenge that status quo.25 As Ran
Hirschl has argued, the constitutionalization of rights may
even be an attempt by outgoing elites to protect their
interests by limiting the ability of majorities to enact more
redistributive legislation.26 For all these reasons, and in
spite of Brown v. Board of Education and other famous
cases that appear to suggest the contrary, it has long
seemed unreasonable to expect that the courts will con-
sistently produce outcomes that significantly favor the
underprivileged.27
Perhaps the dominant account that places rights at the
center of improving the material conditions of the less
advantaged is T.H. Marshall’s classic story of the evolu-
tion of civil, political, and ultimately social citizenship.28
Similarly, the western liberal left has often made civil
liberties a central plank in its platform, at least in part
to ensure equal access to politics, the ability to associate,
and to demand outcomes more favorable to previously
excluded groups. In this account, however, classic liberal
rights merely create the conditions for an extra-legal,
extra-constitutional politics of social citizenship. In the
liberal model, judges are neutral umpires, protecting the
playing field on which the politics are worked out, and
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rights are (in theory) relatively neutral as well, agnostic about
the ultimate distributional outcomes the political struggle
might produce. The realization of social and economic
rights is then a consequence of liberal rights plus mass social-
democratic politics. In social rights constitutionalism,
however, the politics of social and economic demands are
prior to and embedded in the constitutional structure. This
almost inevitably, although with the important intermedi-
ation of legal mobilization, shifts some of the responsibility
for working out the substantive details of social provision,
and some of the work of monitoring compliance, to judges.
Research on the real-world effects of judicially enforced
social rights constitutionalism is remarkably thin. The
literature often includes cautionary notes about its
possibly negative effects, but little empirical evidence.
Researchers are beginning to focus on questions of
compliance,29 but compliance and impact, though related,
are not the same. César Rodríguez Garavito’s interesting
work addresses impact,30 but he focuses primarily on
whether there has been impact, as does Gerald Rosenberg’s
classic work,31 not on who benefits from impact. Recent
research exploring this question has focused on health
rights litigation, mostly claims for particular medications or
treatment, and mostly in Brazil,32 questioning whether health
rights litigation skews policy in favor of the better-off.33
Even in Colombia, David Landau argues, the dominant
models of SE rights enforcement “have a very pronounced
tilt towards higher income groups; they are unlikely to do
much for poorer citizens.”34
Thus far, the research on who wins and who loses has
taken the most direct approach, identifying the actual
remedies directly required by the courts, or conducting
a survey of people receiving benefits by court order in an
effort to ascertain the socio-economic profile of the class
of people who litigate successfully and capture the direct
effects of litigation in the individual case.35 Clearly, this
is where it is easiest to measure the effects of litigation, just
as it is easiest to observe the socio-economic characteristics
of actual litigants. But, as we will see, it seems likely that
the area under the proverbial street lamp is precisely where
effects are likely to be both most regressive and least important
in the overall public policy context—least important simply
because the number of people and resources affected by
collective effects dwarfs that of individual effects, and most
regressive because opportunity costs will ensure that, when
cases benefit both litigants and non-litigants, the litigants
are likely to be among the most privileged of all potential
beneficiaries. As always, but especially here, the choice of
research design is highly likely to determine the findings.
Understanding the Individual and
Collective Effects of Judicialization
In what follows, we argue that focusing narrowly on the
direct, individual effects of cases biases the findings in
favor of a more regressive conclusion. Indeed, it is in large
378 Perspectives on Politics
part the expected reach of the effect of the cases that
dominate a particular litigation environment that deter-
mines whether the aggregate effects ultimately favor the
poor or the better off. When potential litigants expect that
cases seeking social and economic rights can and will have
effects beyond the litigants themselves, it is more likely that
litigation will be funded by third parties, and undertaken
as a mechanism to extend greater benefits to the poor, even
benefits that are very low cost, such as vaccines, or very
diffuse, such as clean air. When litigation is expected to have
purely individual effects, it will target higher-end goods, be
carried out by better-off litigants, and have greater potential
to further skew the distribution of state goods toward the
better off.
Widening the lens is also crucial because many cri-
tiques of litigation, while they have a nicely contextual
and political vision of how courts work, often rest on
a thin notion of what law is and how it works. Horwitz’s
concern about the proceduralism and formal equality of the
rule of law rests on a nineteenth-century vision of the
content of the law. While it may fit the US Constitution,36
it is at odds with the more robust ideas of substantive justice
embodied in twenty-first century constitutionalism—at
least the constitutionalism emerging in middle-income
countries.37 And the structural critiques of public interest
litigation—elite biases in access, courtroom advantage, judi-
cial preferences and compliance—depend partly on a vision
of the law as a command and control mechanism, triggered
by well-resourced litigants and operated by judges. In this
view, the effects of litigation are mostly reduced to whether
judicially ordered relief reached the litigants in question—
whether the cases had direct (individual) effects.
Since at least the 1970s, however, scholars have argued
that law is more than a set of “operative controls” that
people either follow or fail to follow.38 Law and litigation
as social practices and political resources, scholars have
argued, have wide ranging, systemic effects that extend far
beyond the cases and litigants themselves.39 Indeed,
scholars like Michael McCann would argue, the “indirect
effects and uses of litigation may be the most important of
all for political struggles by most social movements.”40
More recently, Mariana Mota Prado has argued that, when
considering the effects of SER litigation, we need to be
much more sensitive to collective effects than we have been
so far.41 These insights suggest that SER cases can be
arrayed on a continuum based on the expected reach of
their effects—from those with effects limited to one or two
individual litigants to those with virtually universal effects.
Many taxonomies of effects have been offered, and dif-
ferent classifications are often useful for different research
goals. We adopt here a very simple framework, classifying
cases as either individual or collective depending on
whether they are expected to produce purely individual
or more collective effects. At one end of the spectrum are
cases with expected effects that are essentially limited to
individual litigants. These cases, which we refer to as
individual cases, seek to capture individual goods, whether
private or from a common pool, for the litigants and no
one else—a particular plaintiff sues for access to a particular
course of medication or for payment for a particular
personal service, and for no other reason. On the opposite
end of the spectrum are cases that are expected to produce
collective effects—that is, effects for a group that may not
even be represented in the courtroom.
Cases produce collective effects through two channels.
First, cases can have collective effects directly, when
litigants sue for, and court orders directly require, the
provision of inherently collective goods: the creation of
common pool or club goods, as when a lawsuit seeks the
creation a new AIDS program; and occasionally the
safeguarding of public goods, as when a lawsuit seeks
the protection of clean air or water, in order to protect
health. We refer to these as direct collective effects. Second,
cases might produce collective effects when judicial inter-
ventions in a policy area modify the incentive structure and
bargaining power of key actors in that field, even if they do
not directly order the creation of collective goods. This is
what we refer to as systemic collective effects. Examples of
systemic collective effects are the transformations in labor
rights negotiations produced by changes in the law, as in
McCann’s work; decisions taken in anticipation of litiga-
tion, such as using safer playground equipment or training
police to avoid violence, in Epp’s work; and the decision by
Brazilian public health bureaucrats to extend court-ordered
remedies to all similarly-situated persons in order to avoid
the costs of litigation or simply to equalize provision, in our
own work.
It is likely true that virtually all cases brought for an
individual, private purpose have some collective effects.
Our argument, however, hinges on the intent of the
parties, and so we classify cases that do not explicitly seek
collective goods as collective only when they are undertaken
specifically for their expected systemic effects, as in the
classic model of landmark public interest litigation. The
South African health cases fall in this category, as would
Brown v. Board of Education, Victoria (City) v. Adams,
and many other cases that are brought in order to set an
important precedent, even though by their terms they are
only brought on behalf of particular plaintiffs. In other
words, nominally individual cases are brought as collective
cases when they are pursued in order to, and expected to,
generate systemic effects.
We should note here that SER are often characterized
as positive rights, and SER litigation is typically imagined
to aim at securing collective or individual goods at gov-
ernment expense. In fact, SER cases can often be much
more akin to traditional negative-rights cases (and civil
and political cases much more like positive-rights cases)
than this model would suggest, and for that reason
we avoid relying on the positive/negative distinction.
We have mentioned already the striking negative-rights
approach to housing rights taken in Victoria (City)
v. Adams. In that case, the courts of British Columbia
essentially sanctioned the right to sleep in a cardboard
box (if you have one) in a public park (if there is one); but
they created no affirmative duties upon the state to ensure
that anyone has anything like adequate shelter. In an
equally striking example of systemic collective effects,
however, public authorities responded to this narrow
decision in part by creating more public shelters for the
homeless, even though the courts did not order them to
do so, simply to keep their parks free of squatters. What is
interesting about that case for our purposes is not whether it
can be categorized as positive or negative, but whether it was
expected to produce wide effects, either through an order for
a collective good or systemically, and who it ultimately
benefited, whether the poor or the better off.
Because they depend on extant characteristics of the
legal and political context, collective effects may be more
or less predictable by groups seeking to produce social
change. Sometimes SER litigants will request, and judges
will directly order, the provision of collective goods—e.g.,
the production of an “orphan” vaccine by the government,
as in the Viceconte case in Argentina.42 Whether litigants
can bring these cases depends on whether the legal system
in question allows for them, and whether the judges are
willing to issue orders that are often perceived as treading
on legislative territory. Civil law systems often contemplate
the possibility of abstract constitutional challenges in
which the decisions by their very terms have universal
application—each case either strikes or upholds the law in
question, affecting rights for all persons regulated by the
statute. The Indian Public Interest Litigation is a sort of
public interest class action that was created by judicial
fiat;43 the Ação Civil Pública, a similar device contemplated
in Brazil’s 1988 constitution, empowers either the public
prosecutors or certain public interest organizations to file
actions asserting collective or diffuse interests. In all these
cases the directly affected individuals never have to appear
before a court.
At other times features of the legal system in question
automatically assign systemic effects. Systems with a strong
norm of following judicial precedent (what is known as
stare decisis), for instance, implicitly make every case a
collective one, creating a rule that is legally binding on all
similarly situated people. Thus many social movements
have as their primary goal not a victory in the individual case
but the creation of precedent to produce broad systemic
change. The conventional wisdom is that common law
systems have the edge in this regard, although the extent to
which a given system actually responds to precedent is really
an empirical question, and largely driven by a politics of
enforcement and compliance, as the vast literature on law
and social change has emphasized. Because some civil law
countries have a de facto system of precedent, the extent to
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which activists feel they can rely on precedent to change the
law will vary. The CELS in Argentina, for example, focuses
on strategic litigation precisely because they expect impor-
tant cases to set precedents and change the law. In Brazil,
in contrast, activists expect very little rule change from
the courts.
In the latter environments, systemic effects arise from
individual cases much more unpredictably. There is still
the potential for systemic collective effects in Brazil, where
public health officials will sometimes extend the same
treatment to non-litigants that they were compelled to
extend to litigants, even though everyone agrees judicial
decisions are binding only on the immediate parties to the
case. Thus, even in Brazil, AIDS activists brought cases
with the goal, ultimately, of changing treatment for all
HIV positive people. But the road to generalizing the effect
was not as clear as it would have been in places with norms
of stare decisis, like the United States or South Africa.
As a result, the evidence suggests that later generations
of health-rights plaintiffs in Brazil are primarily motivated
by the individual effects they can capture for themselves.44
Collective systemic effects in Brazil, however real, are less
predictable in advance of the litigation and are typically not
a part of the litigant calculus leading to a lawsuit.
The progressive potential of SE rights litigation hinges
on the strategic calculus of potential litigants, who must
decide whether it is worth litigating for a particular policy
good. The argument draws on the notion of opportunity
structure frameworks for analyzing when and where
social movements concentrate their efforts, a notion that
has been explicitly applied to litigation by Siri Gloppen,
Bruce Wilson, and others, as well as in our own work.45
When benefits are limited to litigants, individuals must
generally raise the resources to litigate, and the individual
benefit being demanded must generally exceed the full
cost of litigation, so litigation will tend to focus on higher-
end goods and services, and benefits are more likely to skew
toward the better off. Moreover, if systemic effects are
unlikely or unpredictable, social movements will not focus
their efforts on litigation, and thus groups seeking to
improve the lot of the underprivileged are unlikely to
seize on courts as the venue. On the other hand, if benefits
are expected to generalize beyond actual litigants, then
those who cannot afford to (and do not) litigate can still
benefit, and the aggregate benefit of even very low-cost
interventions can justify relatively expensive (in practice,
often third party-funded) litigation. For example, Treatment
Action Campaign, a South African NGO, mounted an
expensive and complicated litigation and activism campaign
to require the government to offer pregnant women a $5.00
dose of Nevirapine, to prevent mother-to-child transmission
of HIV. For any single individual, or even for a charitable
enterprise, it would be irrational to engage with the
machinery of courts to secure something of such low cost.
But, as in this case, public interest NGOs and other social
380 Perspectives on Politics
movements may very well litigate for individually small
benefits on behalf of the poor, if they can engage in
“impact litigation” rather than litigating on behalf of each
needy person, one at a time.
Schematically, in the absence of (expected) collective
effects, citizen i will litigate only if the expected individual
benefits exceed the expected individual costs of litigation,
or E(bi) – E(ci) . 0. This means that, first, because of the
high opportunity costs of litigation for the poor, the rich
will be more likely to litigate unless E(ci)  0. But more
importantly, if E(ci) .. 0, the expected benefits to the
litigant must be very high. That rules out not only litigation
for low cost inputs and interventions, but also litigation
for public goods or against “public bads” (e.g., dirty
water, bad air) whose harms are often only demonstrable
at the population level, and in a probabilistic sense.
Adding collective benefits from positive-rights litigation
for collective goods radically changes the equation,
justifying even relatively costly litigation for relatively
low cost individual benefits that can be multiplied by the
entire population of similarly situated claimants.
This suggests that an emphasis on litigation with col-
lective effects is likely to have a larger impact on the share
of poor beneficiaries than lowering barriers to courts: even
when c is very low, it is still high enough (in the form of
opportunity costs) that, although poor people will litigate,
they will do so for relatively expensive goods and services.
We agree with the claim that lowering barriers to access
will make it somewhat easier for the poor to litigate; and
one can find instances in which the poor litigate en masse.46
But even in those instances, they are litigating for relatively
high-value benefits. In contrast, the beneficiaries of collec-
tive SE rights litigation can be poor even when access is
costly; and the benefits sought can be individually inex-
pensive, so long as decisions have broad collective effects.
The expectation of broad collective effects should change
the composition of SE rights litigation so that it is more
likely to involve less-expensive goods and services that can
be provided to many more people, as well as more public,
non-excludable goods.
This analysis of collective effects should have a bearing,
then, on who benefits from litigation. But this may be
contingent on the politics of legal mobilization in a given
jurisdiction. If only the privileged litigate, and if they
litigate primarily for the sorts of things only the privileged
care about—for club goods, in other words, in clubs that
exclude the poor, like better public university education in
poor and unequal countries, or hospitals colonized by the
upper classes because of their geographic location—then
the effects, though collective, are likely also to be regressive.
The question, therefore, is whether the ripples caused by the
collective effects simply magnify the initial bias or whether
the collective effects of litigation can ameliorate that initial
bias. The answer to this is not obvious, and we do not
purport to offer a full answer here, but our findings at
minimum caution against a facile equation of unequal
access to justice with unequal benefits from formal rights.
Furthermore, we do not mean to suggest by this argu-
ment that we could magically create a politics of pro-
gressive, twenty-first century social rights constitutionalism
simply by formally assigning to judicial decisions collective
effects. The literature has amply established that any
successful project seeking to realize the promises embedded
in social and economic rights depends upon a robust set of
political, organizational and financial resources. That is the
basic conclusion of our prior research, and nothing here
contradicts that conclusion.47 Social mobilization capacity
determines the success of what we have previously
identified as the four stages of the legalization of policy—
from the initial mobilization and filing of cases, to gaining
the support of the courts, to matters of compliance and,
ultimately, the close engagement with the implementation
process that distinguishes transformative projects from ones
that turn out to be a mirage. Both the magnitude and the
distribution of the actual benefits from any such strategy
will, of course, depend on the conformation of the political
structures that undergird the entire enterprise. The possi-
bility of collective effects interacts with the politics of legal
mobilization by creating stronger incentives both to litigate
precedent-setting and collective-goods cases and to use
court orders in political mobilization and implementa-
tion monitoring.
If our claim is true, it has a clear and somewhat coun-
terintuitive policy implication. In the more cautionary,
juriskeptical academic literature, judges are often urged
to be wary of interventions on behalf of positive rights,
and especially of ordering broad public policy-like effects.
The fear is that they will lose legitimacy by violating
the separation of powers,48 and simply make matters
worse by exceeding the bounds of their competence and
capabilities.49 But if they heed this advice, they may well
be encouraging a more regressive form of judicialization.
An analysis of the collective effects of their rulings may
complicate the analysis considerably. If we find that
systemic effects are positive—say because the added judicial
scrutiny of executive decision-making encourages the gov-
ernment to address felt needs that have somehow escaped
the political process—or that collective judgments can create
the conditions for better policy-making around a particular
issue,50 we might encourage justices to think in a more
policy-conscious way, rather than narrowing their vision to
the litigants standing before them in the courtroom. To the
extent their legitimacy is tied to a consequentalist analysis
of the effects of litigation rather than to traditional notions
of separation of powers, a more conscious attention to
collective effects might enhance rather than detract from
their legitimacy.
The broader point, which we will not develop in any
detail but which becomes self-evident in light of our dis-
cussion, is that we believe the literatures in comparative
politics and comparative legal analyses must become more
open to each other. While this is rapidly changing, it is
still true that beyond the relatively few people who focus
on judicial behavior, the comparative politics literature
takes too little account of legal processes, and has a rela-
tively unsophisticated understanding of how those pro-
cesses actually operate. This literature could benefit from
the insights of scholars of law and politics, both in the
United States and elsewhere. By the same token, much of
the literature on law, even that which is grounded in the
socio-legal literature, is too innocent of the vast compar-
ative politics literature, which provides a more nuanced
understanding of the political and institutional context in
which legal institutions operate, and could benefit from
a more sophisticated reading of that literature.
The Distribution of the Benefits of
Rights Litigation in Five Countries
The immediate problem confronting comparative research
on the differential effects of policy-oriented legal mobiliza-
tion is the absolute lack of comparable, cross-country data
on the benefits of legal strategies, let alone on the distri-
bution of those benefits. In order to address this and other
questions related to SE rights litigation, we carried out
detailed studies of the judicial enforcement of SE rights
in Brazil, India, Indonesia, Nigeria, and South Africa.51
We used local teams from each of these countries, under our
supervision, to carry out a systematic cross-national survey
of SE rights litigation, including descriptions of the cases
filed in each country, the effect of those cases on public
policies, and estimates of the numbers of people benefiting
from constitutional health and education rights cases.
For this article, we took that data as the starting point
and carried out additional studies of the beneficiaries,
using secondary sources and interviews. The results of
this second-stage investigation (including Nigeria, only
summarily discussed here) are detailed in an on-line
appendix that lays out the data, our calculations, and
our assumptions.52
We were occasionally forced by the lack of data to rely
on rather strong assumptions about the effects of the
litigation. But where our data are weaker—as in the effects
of the Indian or Indonesian cases on education—we
made dramatically conservative assumptions, using a
small fraction of the potentially affected schoolchildren.
In the Indonesian case in particular, we assumed that
the effects of more spending on education, and thus the
benefits of either higher quality or lower cost public
education, were distributed across all existing users of
public education, rather than focused on the poor by
bringing new children into the system. Ultimately, we
are in every case very confident of the policy domains in
which the benefits can be found, and in selective cases
somewhat less confident of the socio-economic composition
of the beneficiaries in each policy domain. In the latter we
June 2014 | Vol. 12/No. 2 381
Articles | The Law’s Majestic Equality?
have made conservative assumptions, to ensure we do
not overstate the potential benefit to the poor. In any
event, the analysis highlights the policy areas affected,
and the reader ultimately can judge whether the nature
of these policy areas justifies concluding that litigation is
an elite-centric enterprise.
The country teams followed comparable but not iden-
tical strategies. In Indonesia they identified all cases relating
to the rights to health care and education. In the absence
of systematic compilations of decisions, they used archival
research in the various courts, and interviewed the
principal legal NGOs. In India and South Africa the
teams used electronic searches to identify all reported
cases from appellate courts on up. In Brazil, where the
number of cases was vastly higher, they searched electronic
databases for appellate and higher courts in a cross-section
of subnational units including states at both ends of
the socio-economic spectrum and extrapolated from this
sample to produce nationally-comparable numbers.
Sampling differences are not likely to affect the conclu-
sions we reach here. In the first place, our conclusions do
not depend on having identified every last beneficiary in
each country. We do not aggregate and average across
countries, so our conclusions are not affected so long as
we have identified representative beneficiaries in each
country. We do aggregate across policy areas within
countries, but here we applied the same sampling
techniques, and we adjusted for population size where
necessary to arrive at comparable figures.
These countries will not necessarily give us a representa-
tive sample of SE rights litigation across the world—there
are no post-Soviet cases, no advanced industrial democra-
cies, no cases at the bottom of the global income spectrum.
But they can fairly be called representative of the
middle-income cases (Brazil and South Africa are upper
middle-income and Indonesia and India are lower middle-
income economies) where social rights constitutionalism
has been most important and thus where we focus our
attention. More importantly, these countries, for different
reasons, offer both cross-national and within-country
variation in the extent to which litigants should expect
their cases to have collective effects. In India, a common
law country, and in South Africa, which blends common
and civil law traditions, cases have broad precedential
effects, simply by virtue of that tradition. Meanwhile, in
the civil law countries (Brazil and Indonesia), individual
cases are expected to have individual effects, but there is the
possibility of filing cases with primarily and self-consciously
collective effects. The Ação Civil Pública, in Brazil, and the
abstract constitutional challenge, in Indonesia, for instance,
both figure among the cases in our sample.
We estimate the regressive or progressive impact of
litigation by examining whether the poor, defined in nearly
all cases as those in the bottom two income quintiles, are
over- or under-represented among the beneficiaries of
382 Perspectives on Politics
litigation relative to their share of the population—in
other words, whether more or less than 40 percent of the
beneficiaries fall below the fortieth income percentile.
Finally, in calculating the distribution of benefits, we
discount cases with partial or no implementation, and we
account for the likelihood that the poor will not receive even
the collective benefits of litigation by including only the
population that has access to the mechanisms that dispense
the goods in question—schools, hospitals, blood banks, etc.
For each subset of cases, we examine whether the
decisions’ effects are expected to be narrow and tied to the
initial litigants, or whether the impact is the product of
broader, more collective decisions. In general, South Africa
and India are the two countries that experienced the most
collective litigation. In both of these countries high court
decisions strongly guide both lower courts and public
officials. Indian courts, moreover, rely heavily on Public
Interest Litigation, a legal device that encourages individuals
and NGOs to speak on behalf of otherwise unrepresented
interests, encourage fundamental rights litigation, and are
not shy about addressing regulatory issues, which are col-
lective by definition. These countries should have the most
pro-poor outcomes, with litigation targeting lower-cost
goods and policy areas that serve more people. At the oppo-
site end of the spectrum, cases in Brazil are largely pursued
for their individualized benefits, and are expected by
litigants to have purely individual effects in the short term,
and thus should focus on more expensive goods and be less
pro-poor. To look at within-country variation we also
examine Brazilian education cases, which rely more on the
Ação Civil Pública, a legal device used to challenge broad
public policies, and which should, therefore, have a higher
share of disadvantaged beneficiaries.
We have two additional cases on which to draw,
Nigeria and Indonesia, but in neither of these cases has
litigation had a very significant impact across policy areas.
The reasons for their limited impact are fully discussed in
our other work.53 Here we focus more narrowly on the
distribution of whatever impact there is, so Nigeria is
discussed only in the tables and the online Appendix, while
the discussion of Indonesia focuses on the one set of cases
that had a discernible impact.
Brazil
By far the most common form of litigation in Brazil
consists of individual actions in which litigants sue for
medical services and medications. Our survey identified
about eight thousand cases in four states (Rio de Janeiro,
Rio Grande do Sul, Bahia, and Goias); of these, over 94
percent were individual actions for health-related goods
and services. Some 66 percent of these were demands
for state-funded medications. Essentially all the cases are
individual demands to capture individual goods from a
common pool. All the research on Brazil makes it clear
that these cases are undertaken for their individual effects,
and that judges disfavor health rights cases that are meant
to have collective effects. While even this individual liti-
gation has systemic effects, the evidence suggests that these
effects are mostly unexpected and unintended by the
litigants. Still, our and other research shows that after
a number of cases for a particular remedy, the states stop
opposing the claims and begin supplying the medication
through the public health system.54 This was true, for
instance, for HIV/AIDS treatments.
Thus, in Brazil, the litigation landscape is dominated
by individual litigation. The largely litigant-unintended
collective effects, when they occur, produce club
goods—goods that, while not universally enjoyed, are
shared by the entire benefitted class and (typically) are not
meaningfully depleted by any individual user. The key
question in gauging the progressive effects of this litigation
is who belongs to the club. If the litigation targets club
goods that are enjoyed predominantly by the better off,
then its collective effects essentially re-focus the state on
“rich people’s problems”—and the greater these effects,
the more regressive the impact of litigation on the distri-
bution of health care in Brazil. To estimate the socio-
economic composition of the members of the club, we
assumed that the beneficiaries roughly reflected the dis-
tribution of these diseases as diagnosed. By identifying who
is treated for the diseases that are the subject of litigation,
we can evaluate the extent to which health rights litigation
is in fact simply drawing the state’s attention to “rich
people’s illnesses.” Table 1 summarizes the results of our
investigation for Brazil’s health cases.55
Note that our analysis allows us to set the outside
bounds of the outcome of interest when litigation is
pursued as an individual enterprise: if all the effects are
direct individual effects, benefits are limited to the litigant
population, which others have identified through litigant
surveys, and placed at about 40 percent underprivileged;56
if collective effects fully generalize to those similarly situated,
then the beneficiaries include all Brazilians who share an
illness with the litigants and are treated through the
Table 1
Distributive Impact of Health Rights Litigation, Brazil
Litigation Stream Percent underprivileged
HIV/AIDS 32
Hepatitis 30
Diabetes 14
Cancer 26
Hypertension 19
Osteoporosis 50
OTC goods 43
Terms of private insurance 32
Total 36
public health system, about 36 percent of whom are
underprivileged. Either way, this type of litigation, driven
by individual incentives, produces more regressive outcomes
than the collective litigation we see in other countries.
Prado has recently argued that certain systemic effects of the
Brazilian litigation may make this pattern less regressive
than we think;57 more detailed analysis would be needed to
reach a final conclusion on this question, but for now we
may accept our findings as something like an upper-bound
estimate of its regressive effects.
Overall, the distribution of beneficiaries in Brazil skews
upward slightly, relative to the population. This confirms
our expectation that litigation undertaken for individual
benefits is regressive, though perhaps not by a great
margin—and it suggests that whether judges and litigants
intend it or not, litigation is likely to have systemic effects.
Health-rights litigation in Brazil is hardly a phenomenon
limited to or dominated by “elites,” however you may
define them, but the distribution of benefits of litigation is
less pro-poor than the distribution through the general
public health system (which serves a population that is
about 43 percent poor)58 by about seven percentage
points. If the individual litigation model continues to
dominate and to grow, distributing ever more resources
through litigation, the distribution of goods through the
public health system may shift more and more toward the
better off. Moreover, others have found, again as expected,
that this litigation tends to focus on high-cost medications,
so that even in the categories in which the poor are sig-
nificantly over-represented, such as osteoporosis, litigation
targets very expensive treatments.59
The picture was quite different in the less voluminous
right-to-education litigation. In education, our earlier survey
finds that all of the impact is due to cases that affect the
regulatory structure around education. These cases are
intended as collective cases, and the benefits by definition
extend to all those who use the service in question. They
are not, by and large, positive-rights cases in the sense
that they do not require the state to provide more
N underprivileged Total N
209,057 660,000
45,000 150,000
96,180 687,000
19,000 72,200
138,624 729,600
1,213,150 2,426,300
1,174 2,731
12,765 40,522
1,734,950 4,768,353
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Articles | The Law’s Majestic Equality?

services, although some of the cases do fit this category.
In this policy area, then, we identified the effects of cases
relating to private schools (for example, allowing legislative
limits on tuition increases) and public schools (mostly,
easing procedural restrictions on hiring new teachers),
estimated the number of beneficiaries in each, and applied
the known demographics of public and private school
students to these findings. According to the Brazilian
statistical service60 about 80 percent of public school
students, and 27 percent of private school students were
“underprivileged.”61 Our survey found about 40,000
beneficiaries in public schools and only 400 in private
ones. Applying the demographics of education to this
ratio, at least 78 percent of the beneficiaries of education
litigation came from the lower two income quintiles, so
that the poor were overrepresented in Brazil’s more
collective right-to-education litigation by about 2 to 1.
South Africa
South Africa’s post-apartheid constitution of 1996 explicitly
includes rights to housing, health care, food and water,
education, and social security. Our review of cases at the
level of the High Court and above found twenty-four cases
dealing with health and education rights. In contrast to
Brazil, and as expected in a common law jurisdiction, South
Africa showed not only a markedly smaller number of cases,
but also a set of cases primarily targeting collective effects on
public policy, rather than individual impact on litigants.
This means that, even more than for Brazil, the demo-
graphics of the actual SE rights litigants in South Africa are
of trivial importance, compared to the demographics of the
relevant policy area beneficiaries—we are less interested in
the few named plaintiffs in the Treatment Action Campaign
case, for example, than in the demographics of the
thousands of women and children who benefited from
the resulting distribution of medications to prevent
mother-to-child transmission of HIV.
The overall results for South Africa, in keeping with
our expectations, were more pro-poor than those in
Brazil: more than eighty percent of all those benefited
by these decisions fit even a fairly narrow definition of
“underprivileged,” compared to the slightly negative effect
of litigation in Brazil. If we assume that the South African
“underprivileged” come from the bottom forty income
percentiles (in fact, they were probably even less “privileged”
than that), then South African SE litigation was twice
as pro-poor as the Brazilian model. We summarize our
calculations in table 2.
Note that the findings for South Africa are significantly
driven by the fact that HIV/AIDS, the object of most of
the significant cases, has a much higher prevalence among
poor South Africans. Still, the results support our basic
claim—in collective litigation-friendly South Africa, it
makes sense to litigate even the relatively low-cost single
dose needed to prevent mother-to-child transmission of
HIV.
India
Starting in the early 1980s, India’s Supreme Court began
to enforce economic and social rights. But perhaps as
important was a significant opening to collective cases that
occurred in the same era: the Indian courts established
Public Interest Litigation, in which applicants need not
demonstrate that they themselves have suffered harm in
order to address a public policy issue; the courts lowered
the standard for a petition, so that even letters to the courts
could qualify; and the Supreme Court began to examine
social concerns on its own initiative. Ninety-nine percent
of all the beneficiaries we identified in India were the result
of cases like these, with broad collective goals.
Our review found 209 cases involving the right
to health and 173 involving the right to education.
The Indian courts heard cases involving low-cost goods
and services, such as the regulation of, and policies toward,

Table 2
Distributive Impact of Health and Education Rights Litigation, South Africa
Standard for Percent N
Case name Description “underprivileged” underprivileged underprivileged Total N
Van Biljon HIV1 prisoners Prisoner 100 57,600 57,600
TAC HIV1 pregnant women Household income* 69 37,950 55,000
Interim procurement Procurement of ARVs Household income* 69 29,325 42,500
Hazel Tau Generic ARVs Household income* 69 82,110 119,000
Total Health 76 206,985 274,100
Premier Mpumalanga Subsidies for poor children “Indigent” children 100 22,500 22,500
Watchenuka School-age asylum seekers Asylum seeker 100 50,625 50,625
Total Education 100 73,125 73,125
Total 81 280,110 347,225
*Household income less than $132 per month

384 Perspectives on Politics

primary education and basic health care. Many of these
are not classic cases of positive-rights provision, but look
more like negative-rights cases—and even these some-
times suffer from a lack of enforcement.62 Examples of
poorly-implemented negative-rights decisions include
a ban on child labor, a ban on corporal punishment in
schools, a ban on smoking in public places,63 injunctions
to close polluting factories and set up green zones, and a
case permitting criminal prosecution of medically-negligent
health care providers. Similarly, more positive-rights cases
sometimes suffer from low implementation, including rulings
on hospital quality, extending the right to pre-primary
education, and setting up schools for blind children.64
We did, however, find substantial impact from several
streams of litigation in India. In some cases, the benefits
of broad collective decisions trend away from the poor,
due to weaknesses in the distribution of India’s state
benefits. In contrast to South Africa, 77 percent of the
beneficiaries of AIDS litigation were not from disadvan-
taged classes (table 3) because most of the benefits went to
the few who already accessed (very unevenly distributed)
hospital care. Similarly, although we estimated a large
number of beneficiaries from increasing patients’ right to
sue doctors for malpractice, these benefits went to those
who were utilizing formal sector private medicine, only
13 percent of whom came from the lowest two income
quintiles. Unequal access to basic services can skew even
progressive patterns of litigation.
The remaining two litigation streams that affect large
numbers of people were strongly pro-poor. The first
focused on air quality in Delhi and other urban centers;
the other on the provision of midday meals to students in
public schools. The former does not depend on the state
for distribution, and the other is distributed through the
schools, where there is a broad base of participation.
The Delhi clean air cases culminated in a 2001 order
in which the Indian Supreme Court required commercial
vehicles in Delhi to use cleaner fuels. This resulted in
sharply lower rates of respirable suspended-particulate
matter (RSPM) in the air around Delhi. Our calculations
show that the change saved an estimated 14,323 lives
in Delhi from 2002–2006 and significantly reduced
morbidity among about 523,000 people. To estimate
disadvantaged beneficiaries, we assumed that the
distribution of illness episodes followed the distribution of
asthma in the general population. About 47 percent of
diagnosed asthma sufferers in India come from the lowest
two income quintiles,65 so that the number of disadvan-
taged beneficiaries was 259,196 people. This is likely an
underestimate: rates of diagnosis, as in Brazil, are likely
lower for the lower-income groups, and in this case the
decision’s benefits improve conditions for all asthma
sufferers—the undiagnosed perhaps even more than the
diagnosed ones.
We estimated the impact of the right-to-food litigation
to be the sum of impacts on school attendance and on
nutritional status. The free midday meals increased the
incentive for parents to send children to school, partic-
ularly girls; and studies indeed found that the program
increased first grade school enrollment, for girls alone, by
10 percent per year. As a result, the program resulted in
412,500 new girls in school each year from 2001–2006.
All of these were likely disadvantaged, as the lowest-income
girls are the ones who are prevented from attending school
due to a lack of food. We estimated that nearly ten million
students benefited from the program’s nutritional effects.
Similar calculations for other cases are in table 3.
Overall, the share of disadvantaged beneficiaries in
India was about 84 percent, consistent with the
expectations when the legal system permits abstract policy
review and cases focus on broad policy issues, such as
regulation. Note, however, that the lion’s share of the pro-
poor benefits in India stemmed from just one or two major
cases (confirming our intuition that the most progressive

Table 3
Distributive Impact of Health and Education Rights Litigation Streams, India
Litigation Stream Percent underprivileged N underprivileged Total N
Extend Consumer Protection Act to health care 13 219,216 1,648,240
Secure blood banks 23 14,260 62,000
Free ARVs for AIDS patients 34 3,400 10,000
Limit vehicular pollution 47 259,196 551,481
New hospital for Union Carbide victims 40 148,000 370,000
Midday meals in schools 100 9,841,667 9,841,667
Total Health 84 10,485,739 12,483,388
Extend teacher qualification 37 31,080 84,000
Expand access to tertiary education 11 2,200 20,000
Total Education 32 33,280 104,000
Total 84 10,519,019 12,587,388

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Articles | The Law’s Majestic Equality?
cases are also those that have the greatest potential for broad
impact), and that shortcomings in India’s state capacity
otherwise constrained the potential pro-poor impact of
collective litigation.
Indonesia
Our survey identified only one right-to-health or right-to-
education case with wide impact in Indonesia since the
beginning of the transition to democratic rule in 1999.
By far the most consequential SER litigation stream in
Indonesia, accounting for 95 percent of the identified
beneficiaries, was a series of three cases involving judicial
review of government funding for K–12 education. In the
Judicial Review of the 2005 State Budget Law and two
subsequent challenges, the Constitutional Court ordered
compliance with a constitutional requirement that the
budget allocate 20 percent of its expenditures to education.
These rulings contributed to an increase in education’s share
of the budget from 7 percent to nearly 12 percent in
the next few years (and eventually 20 percent, but only
once the definition of the numerator changed). Our study
estimated, very conservatively, that at least 750,000 students
received significantly better schooling as a result of more
financing (out of some 50 million students enrolled in
primary and secondary education at the time).
In Indonesia, the poorest are underrepresented in public
education—middle class families commonly use public
schools while many of the poorest families are not enrolled
Figure 1
Percent underprivileged in each category
386 Perspectives on Politics
at all. These middle class families are not, of course, rich
by global standards: approximately half of Indonesians
consumed less than US$2/day in 2007.66 Still, we estimated
that 36 percent of the public school students who benefited
were from the lowest two income quintiles. This may be
an underestimate because adding money to the public
school budget might have lowered costs (Indonesian
public school students pay considerable fees and other
costs) as well as raising quality, so that the litigation
might have had the effect of drawing more lower-income
families into the system.
Interpreting the Distributive Results
Figure 1 summarizes our findings, showing the percentage
of underprivileged persons benefiting in each class of
litigation. With some exceptions, such as prisoners or
refugees, the underprivileged category in each line repre-
sents the bottom 40 percent of the population in terms of
income. Any finding that more than 40 percent of the
beneficiaries are underprivileged, therefore, is a finding
that the poor are overrepresented among beneficiaries
compared to the general population. With the exception
of the Indonesia education cases, in all cases in which the
litigation is pursued for its collective effects, the underpriv-
ileged are overrepresented—and in most cases by a margin
of at least two to one. When the landscape is dominated by
uncoordinated individual litigation, on the other hand, the
poor are less likely to be among the beneficiaries.
 Several findings deserve highlighting. First, of course,
the share of underprivileged beneficiaries in each class of
cases is generally higher when expected collective effects
dominate individual effects. India and South Africa, where
collective litigation dominates, are at the high end, Nigeria
at the low end, and Brazil and Indonesia in between.
Overall, in cases with expected collective effects the poor
are overrepresented among the beneficiaries of SE litigation
by a factor of around 4 to 1. In Indonesia, our estimate
of how the poor benefit is highly conservative, so the
numbers might actually be better than we show here. Both
there and in India, the pro-poor impact of many collective
cases is muted by the limited reach of the welfare state to
the poorest sectors of the population, not by any structural
elite bias in the law. In these cases, the use of existing state
mechanisms to distribute benefits—whether of litigation or
any other form of mobilization—will continue to privilege
those who are already in some relationship to the state.
Only a more structural approach aimed at developing
state capacity, which we have not observed in existing
SER litigation and which may well exceed the capacity of
courts, would avoid this outcome. Even absent litigation
explicitly designed to expand state infrastructure, however,
legal mobilization could have a positive effect. Especially if
we accept the argument that improving education funding
or food distribution should extend its reach to lower socio-
economic sectors, it appears that, when courts adopt a more
programmatic approach, a legal strategy can somewhat
correct for the prior maldistribution of state services, rather
than merely reflecting or intensifying inequalities.
Second, even in the cases we did not expect to be pro-
poor, the impact of litigation was not as elite-biased as we
might have predicted. In the Brazil health cases the poor
were, in fact, almost proportionately represented—whether
that is a terrible outcome or a not so bad one depends on
one’s prior expectations. Cross-country and cross-policy
area differences in the number of cases counsel against too
much aggregation, but on average the underprivileged are
only underrepresented among the beneficiaries of individual
litigation by about twelve percent (35 percent, relative to the
distributionally neutral benchmark of 40 percent), while
they are overrepresented by over 200 percent in the areas
where we expected a more pro-poor effect (82 percent
compared to 40 percent). This is in part due to what
we suggested earlier—systems that restrict benefits to the
litigants tend to favor a wealthier population, but they also
have effects that are not as widespread. The exception to the
“individual litigation equals low impact” equation is Brazil,
where a combination of low barriers to litigation and a
favorable legal environment has produced a veritable
industry of individual litigation. Low barriers to access,
when litigation is limited to individual cases, might lower
the mean income of litigants and increase the impact of liti-
gation, but will continue to exclude the truly marginalized.
Third, as shown here and in the Appendix, even our
own fairly narrow examination shows that nearly all cases
have some systemic effects, and estimates of the progressive
or regressive effect of SER litigation need to take this into
account. Among cases that direct the state to provide more
resources, the difference between Brazil, on the one hand,
and India, Indonesia, and South Africa, on the other, is
that the systemic collective effects in the former were
the product of individual cases that were intended by the
litigants to have purely individual direct effects, so that
the claims generally targeted higher-end goods for which
demand was spread across all income strata. Only where
litigation was expressly undertaken for its collective effects
do we see a focus on low-end goods for which we might
expect demand to concentrate among low-income popula-
tions, and which are inexpensive enough for the state to
provide on a massive scale.
In summary, for all the seemingly commonsensical
reasons to expect litigation to be an elite game, the evi-
dence does not support a finding that only the better-off
benefit—in fact, in many of the categories, the primary
beneficiaries of the cases in our sample were the underpriv-
ileged. It is true then that litigation does not, with important
exceptions, target primary health care, where individual
interventions tend to be relatively low cost; but it is not true
that it does not target primary education. It is true that
many of the cases are brought by middle class people or
people who fit some definition of privilege (such as the
white Afrikaans-speaking population of South Africa); but it
is not true that these cases dominate, either in number of
cases or number of beneficiaries. This is strong evidence that
human rights litigation on behalf of social and economic
rights is not inherently anti-poor, and can actually address
the needs of marginalized groups.
Conclusion: Future Research on Social
Rights Mobilization
There are a number of reasons why our analysis here
should be treated as a preliminary finding and an invi-
tation to further research. The first is that, as is evident
from the preceding discussion, our data are rough and
our conclusions could be tested or extended with more
in-depth comparative case studies. The more important
one, however, is that, as anticipated in the introduction,
we need to think beyond the “command and control”
model of law’s operation.
There are very few studies of the effect of social rights
constitutionalism on the politics of social policy, beyond
the study of litigation, which strikes us as a very partial
view. What effect does the constitutionalization of rights
to basic goods like health care, education and so on have
on politics more broadly? We ourselves would expect this
to be positive. Surely the debate in the United States on a
federal health care program is deeply colored, to the det-
riment of public health provision, by the lack of express
June 2014 | Vol. 12/No. 2 387
Articles | The Law’s Majestic Equality?
substantive commitments to aggregate welfare in the
United States Constitution. Most countries writing
constitutions today opt for a more robust vision of the
central government’s role in providing for the wellbeing
of the population than simply making space for private
enterprise or subnational units to act. The point of social
rights constitutionalism is not that putting the right to
health, or the right to a decent standard of living, in the
constitution will make it so. Rather the hope is that
under some conditions a constitution writing process
that includes these commitments may promote a robust
politics of rights provision, or that, under certain circum-
stances, the inclusion of these provisions in constitutions
affects national identities and serves as a focal point for
mobilization. Surely drafters expect these constitutions to
lead to societies that take better care of the least well off, for
reasons that far exceed the possibility of litigating particular
issues of social provision.
But it is entirely possible that the presence of far-reaching
promises in a constitutional text, in the presence of
enduring inequalities and deprivation, might have
negative consequences for this and other outcomes.
The presence of formal, unfulfilled social and economic
rights might detract from the legitimacy of the constitution,
or shift the politics from the legislative arena to a possibly
less effective judicial arena. Couching these entitlements in
the language of rights might have an atomizing, individu-
alizing effect, to the detriment of possibly more-effective
collective, class-based mobilization. Focusing on rights to
basic goods, instead of on the economic or political con-
ditions that make the provision of such goods possible,
might result in the misallocation of government resources
and energies. Adding a long list of rights that may never be
fully realized might cheapen rights overall, leading to a lack
of regard for basic civil and political rights. We simply do
not have good comparative studies of the overall, systemic
effects of what has become a hugely important political
phenomenon. Scholars of courts and scholars of compar-
ative politics need to engage in a broader conversation,
informed by the insights of both scholarly communities,
about the comparative politics, the causes, and the effects of
social rights constitutionalism.
The middle-income countries experimenting most
deeply with social rights constitutionalism live in a world
shaped both by the ideological dominance of constitu-
tional democracy and by global markets that place
constraining pressures on the welfare state. In that
context, many have settled on social rights constitution-
alism as a way to ensure that the distribution of basic
entitlements is not purely determined by the market.
This impulse dovetails with a long tradition suggesting
that basic levels of material wellbeing are necessary for
a successful, more participatory democracy. It is also
congruent with more recent calls for a new model of
developmental state, one that emphasizes the creation of
388 Perspectives on Politics
human capital.67 In this view, the social investment
called for by social rights constitutionalism is an in-
vestment in democracy and an investment in develop-
ment. The extent to which this is or could be true
depends greatly on the answer to the question we posed
here. Does social rights constitutionalism simply deepen
the existing maldistribution of resources and access to
state-provided benefits, thus deepening the challenges of
unequal and underdeveloped democracies, or does it
palliate that inequality somehow?
This study is one of the first systematic and compar-
ative efforts to assess the distributive impact of judici-
alizing social and economic rights. In our view, it
should not be the last. Untangling the impact of judicial
involvement in these basic issues of social provision and
public policy is a more complex matter than the current
state of research—perhaps including this piece—has
acknowledged. SE rights litigation has been used to
scrutinize the scientific claims made to justify the denial
of antiretrovirals for treating HIV and AIDS in South
Africa, and to require more rigorous reason-giving by
policymakers in a variety of contexts. It has been used to
call attention to private health care administrators who
deny benefits that are actually mandated by law in
Colombia. It has been used to publicize and generate
debate about national legislators’ decisions on the level of
education funding in Indonesia. Litigation has required
policy makers to at least consider the claims of populations
with little or no political influence, such as migrants and
refugees in South Africa and Indonesia, or populations
displaced by environmental disasters or conflict in Indo-
nesia and Colombia. The mere possibility of litigation
around these issues could change the quality of decision
making around them, once decision makers understand
that their decisions will be subject to review. Our own
conclusions are tentative, our vision partial, and more
research on this question is needed.
Beyond the implications for academics and constitution-
makers, a better understanding of the distributive and
systemic effects of judicial intervention has important
practical implications for courts and litigants, and they
too are deeply interested in the answer. One of the
authors was approached by a justice from a provincial
supreme court in Argentina. The justice remarked that
his court was flooded with cases relying on the right to
health, and he wanted to know whether he and his
colleagues should treat these cases like every other case,
simply applying the law to the facts to resolve the indi-
vidual case, or whether they should take into account
the obvious policy implications, with an eye to the
distributive and systemic impact of their decisions. If it
is true that litigation leads to more inequality, the
equity-enhancing response would be either to deny the
cases altogether—as many have advocated—or to craft
the decisions as narrowly as possible, so as to minimally
distort public policy. But if our conclusions are correct, 14 Heywood 2009; Nattrass 2004.
the pragmatic answer is exactly the opposite—in social 15 Shankar and Mehta 2008; Khosla 2010; Gauri 2011.
and economic rights cases, judges ought to craft broadly 16 Trochev 2012; Popova 2012; Hendley 2012.
applicable, more public policy-like decisions, to the 17 Yamin and Gloppen 2011; Gauri and Brinks 2008a;
extent they can legally and practically do so. Langford 2009; Bonilla Maldonado 2013.
This raises obvious questions regarding the proper role 18 Dugard 2013, 321.
of judges in a democracy, and calls for a new take on the 19 The appellate and trial court opinions can be found
so-called “countermajoritarian difficulty” in light of the at 2009 BCCA 563 and 2008 BCSC 1363.
actual, empirical contours of twenty-first-century social 20 Horwitz 1976–77: 566.
rights constitutionalism. Is it enough to say, as the South 21 Indeed, this is part of Moyn 2010’s argument—the
African Constitutional Court has done, that any intrusion language of human rights, in his view, can have
into the legislative arena on behalf of social and economic a constraining and depoliticizing effect, regardless of
rights is one that the constitution itself invites, when it the means deployed to pursue their realization.
makes these substantive rights justiciable? Many of the 22 Cappelletti and Garth 1978–79.
contributions to this debate have centered on the South 23 Galanter 1974.
African Court’s decisions, and too many have been carried 24 Dahl 1957.
out without rigorous, comparative, empirical contribu- 25 Rosenberg 1991.
tions by social scientists. More comparative studies of the 26 Hirschl 2004.
origins and consequences of social rights constitutionalism 27 Although some have argued that courts with low
are needed to inform this debate. Our hope is that by barriers to access can and do work on behalf of some
demonstrating the complex politics of social and economic underprivileged groups. See Wilson 2009, 2007.
rights litigation we can help to promote a more consistent 28 Marshall 1950.
engagement between legal scholars and scholars of 29 See, e.g., Kapiszewski and Taylor 2012; Staton 2004;
comparative politics. Gauri, Staton, and Vargas Cullel 2013.
30 Rodríguez Garavito 2011.
Notes 31 Rosenberg 1991.
1 France 1922: 117–118; authors’ translation. 32 Ferraz 2011; Da Silva and Terrazas 2011; Biehl et al.
2 Jackson v. Joliet, 715 F.2d 1200 (7th Cir. 1983). While 2012.
Posner’s view is somewhat controversial, few would 33 Norheim and Gloppen 2011.
deny that this is the dominant view of the constitution 34 Landau 2012.
reflected in the Supreme Court’s decisions. 35 Biehl et al. 2012; Vieira and Zucchi 2007; Da Silva
3 Horwitz 1976–77. and Terrazas 2011.
4 The empirics are backed up by an Appendix that is 36 But see, for example, Forbath 2007, on the US
posted online. Find the link in the Supplementary Constitution’s potential for a more robust notion of
Materials listed below. social and economic rights.
5 Law and Versteeg 2011. 37 See especially the discussion in Brinks and Forbath
6 The term is meant to describe constitutions that 2014 and Bilchitz 2013.
attend centrally to what Roberto Gargarella in his 38 Galanter 1974, 127.
description of Latin American constitutions calls “the 39 Scheingold 1974; Rosenberg 1991; McCann 1994;
social question” by incorporating a series of rights to Rodríguez Garavito 2009.
basic social and economic goods, such as health care, 40 McCann 1994, 10.
education, housing, basic social provision, and even 41 Prado 2013.
a decent standard of living, sometimes at the expense 42 Viceconte, Mariela c. Estado Nacional (Ministerio
of addressing imbalances in the distribution of power; de Salud y Ministerio de Economía de la Nación)
Gargarella 2013. s/ Acción de Amparo, Federal Administrative Court
7 Bilchitz 2013, 47. of Appeals, Argentina, 1998-06-02.
8 Couso, Huneeus, and Sieder 2010; Hirschl 2008; 43 The PIL, as it is known, allows public-spirited people,
Sieder, Schjolden, and Angell 2005; Moustafa 2003; organizations, or institutions, often at the invitation of
Shapiro and Stone Sweet 2002; Guarnieri 2000; Stone the court, to file an action addressing important public
Sweet 1999; Tate and Vallinder 1995; Edelman 1994. policy issues.
9 Moyn 2010. 44 See also Prado 2013 for a discussion of this issue.
10 Brinks and Forbath 2014. 45 Gloppen 2009; Wilson 2009; Gauri and Brinks
11 Biehl et al. 2012. 2008b.
12 Prado 2013. 46 The massive waves of pension litigation in places as
13 Susanti 2008. disparate as Russia and Argentina, involving hundreds

June 2014 | Vol. 12/No. 2 389

Articles | The Law’s Majestic Equality?
of thousands of cases, clearly involve litigants who, by
any measure, are poor. But the remedy they seek is an
important one relative to the cost of litigating—an
adequate pension payment sufficient to meet their
needs over their remaining lifetime.
47 See not only our own book on this (Gauri and Brinks
2008a), but also many other contributions, from the
US (Epp 1998, 2009), South Africa (Forbath 2011),
to Latin America (Yamin and Gloppen 2011).
48 On this point, see especially Tushnet 2009.
49 The classic references here are Horowitz 1977, and
Rosenberg 1991.
50 In fact, there is research suggesting that judicial
interventions, while not panaceas, can
significantly improve the material conditions of
many people who are otherwise passed over by the
representative branches. See Rodríguez Garavito
2009, 2011, or our own work in Gauri and
Brinks 2008a.
51 See Gauri and Brinks 2008a. Here we limit discussion
of Nigeria to some examples and aggregate data,
essentially because there are only two cases worth
discussing, and they had limited effects.
52 See the Appendix, which is posted online. Find the
link in the Supplementary Materials listed below.
53 Gauri and Brinks 2008a.
54 Hoffman and Bentes 2008; Prado 2013.
55 Less than one percent of the beneficiaries sued for
over-the-counter goods that could be used by anyone.
For these goods we simply assumed that a random
distribution of SUS beneficiaries benefited, leading to
an estimate that 46.6 percent of them come from the
bottom two quintiles (and thus have per capita family
incomes below about $60 USD/mon); Ribeiro et al.
2006.
56 We use the 40 percent number because the most
critical studies of the beneficiaries of medications
litigation in Brazil find that the litigant population
approximately reflects the overall income distribution;
Da Silva and Terrazas 2011. Other studies question
these results, finding a much greater participation by
the poor than either they or we do; Biehl, et al. 2012.
57 Prado 2013.
58 Ribeiro et al. 2006.
59 Norheim and Gloppen 2011. Indeed, if our calcula-
tion were done in dollars, rather than in numbers of
people benefited, we might have a more regressive
result. Vieira and Zucchi 2007, for instance, find that
75 percent of the dollars allocated through court
actions are attributable to cancer drugs. If we used this
figure, and assume a blended rate of 41 percent for the
other 25 percent of dollars allocated, as explained in
the Appendix, we would find that somewhere around
30 percent of the benefits, in dollar terms, accrue to
the bottom two income quintiles.
390 Perspectives on Politics
60 Instituto Brasileiro de Geografia e Estatística
(http://www.ibge.gov.br).
61 The cutoff here is actually a more conservative, for our
argument, $50 per month in per capita family income,
rather than the $60 that marks the bottom 40 percent.
62 In this article, we use the terms “negative rights” and
“positive rights” loosely. Most negative rights demands
entail negative and positive duties; and positive rights
demands entail negative and positive duties. See Gauri
and Brinks 2012.
63 Smoking was made a punishable offense in a Supreme
Court case in 2001, but rules implementing the ban were
not put in place until 2008, and enforcement is still spotty.
64 These cases raise one important question that
undoubtedly deserves additional research—to what
extent do the socio-economic characteristics of the
target population influence compliance rates? We do
not attempt to answer it here, but limit ourselves to
noting that there are public good-type cases in both
the compliance and the non-compliance camp (e.g.,
clean water and non-smoking); and club good cases
that seem to favor the poor in both camps (child labor,
which should exclusively affect the poor, and right to
food, which predominantly affects the poor). This
question is certainly worth exploring further, as our
initial investigation shows that litigant resources are
crucial to compliance in large-scale collective cases
(Brinks and Gauri 2008).
65 http://www.who.int/healthinfo/survey/
whs_hspa_book.pdf.
66 http://go.worldbank.org/BEQZ2K3MR0.
67 Trubek 2009; Trubek, Coutinho, and Schapiro 2013.
Supplementary Materials
• Data Appendix
http://dx.doi.org/10.1017/S1537592714000887
References
Biehl, João, Joseph Amon, Mariana Socal, and Adriana
Petryna. 2012. “Between the Court and the Clinic:
Lawsuits for Medicines and the Right to Health in
Brazil.” Health and Human Rights 14(1): 1–17.
Bilchitz, David. 2013. “Constitutionalism, the Global
South, and Economic Justice." In Constitutionalism of
the Global South: The Activist Tribunals of India, South
Africa, and Colombia, ed. Daniel Bonilla Maldonado.
New York: Cambridge University Press.
Bonilla, Maldonado Daniel ed. 2013. Constitutionalism of
the Global South: The Activist Tribunals of India, South
Africa, and Colombia. New York: Cambridge University
Press.
Brinks, Daniel M., and William Forbath. 2014. “The Role
of Courts and Constitutions in the New Politics of
Welfare in Latin America.” In Law and Development of
 Middle-Income Countries: Avoiding the Middle-Income
Trap, ed. Randall Peerenboom and Tom Ginsburg.
New York: Cambridge University Press.
Brinks, Daniel M. and Varun Gauri. 2008. “A New Policy
Landscape: Legalizing Social and Economic Rights in
the Developing World.” In Courting Social Justice:
Judicial Enforcement of Social and Economic Rights in the
Developing World, ed. Varun Gauri and Daniel M.
Brinks. Cambridge: Cambridge University Press.
Cappelletti, Mauro, and Bryant Garth, eds. 1978–79.
Access to Justice. 4vols. Milan: A. Giuffrè.
Couso, Javier, Alexandra Huneeus, and Rachel Sieder, eds.
2010. Cultures of Legality: Judicialization and Political
Activism in Latin America. Cambridge and New York:
Cambridge University Press.
Da Silva, V. A., and F. V. Terrazas. 2011. “Claiming the
Right to Health in Brazilian Courts: The Exclusion of
the Already Excluded?” Law & Social Inquiry 36(4):
825–53.
Dahl, Robert. 1957. “Decision-Making in a Democracy:
The Supreme Court as a National Policy-Maker.”
Journal of Public Law VI(2): 279–95.
Dugard, Jackie. 2013. “Courts and Structural Poverty in
South Africa.” In Constitutionalism of the Global South:
The Activist Tribunals of India, South Africa, and
Colombia, ed. Daniel Bonilla Maldonado. New York:
Cambridge University Press.
Edelman, Martin. 1994. “The Judicialization of Politics in
Israel.” International Political Science Review 15(2):
177–86.
Epp, Charles. 1998. The Rights Revolution: Lawyers,
Activists, and Supreme Courts in Comparative Perspective.
Chicago: University of Chicago Press.
. 2009. Making Rights Real: Activists, Bureaucrats,
and the Creation of the Legalistic State. Chicago:
University of Chicago Press.
Ferraz, Octavio Luiz Motta. 2011. “Harming the Poor
through Social Rights Litigation: Lessons from Brazil.”
Texas Law Review 89: 1643–68.
Forbath, William. 2007. “Social Rights, Courts and
Constitutional Democracy: Poverty and Welfare Rights
in the United States.” In On the State of Democracy, ed.
Julio Faundez. Oxford and New York: Routledge.
Forbath, William, with assistance from Zachie Achmat and
Mark Heywood. 2011. “Cultural Transformation, Deep
Institutional Reform, and ESR Practice: South Africa’s
Treatment Action Campaign.” In Stones of Hope: How
African Activists Reclaim Human Rights to Challenge
Global Poverty, ed. Lucie White and Jeremy Perelman.
Stanford, CA: Stanford University Press.
France, Anatole. 1922. Le Lys Rouge [The Red Lily].
nouv.éd, rev. et corr. ed. Paris: Calmann-Lévy.
Galanter, Marc. 1974. “Why the ‘Haves’ Come out
Ahead: Speculations on the Limits of Legal Change.”
Law & Society Review 9(1): 95–160.
Gargarella, Roberto. 2013. Latin American Constitution-
alism, 1810–2010: The Engine Room of the Constitution.
New York: Oxford University Press.
Gauri, Varun. 2011. “Fundamental Rights and
Public Interest Litigation in India: Overreaching or
Underachieving?” Indian Journal of Law and Economics
1(1): 71–93.
Gauri, Varun, and Daniel M. Brinks, eds. 2008a. Courting
Social Justice: Judicial Enforcement of Social and
Economic Rights in the Developing World. Cambridge:
Cambridge University Press.
. 2008b. “Introduction: The Elements of Legaliza-
tion and the Triangular Shape of Social and Economic
Rights.” In Courting Social Justice: Judicial Enforcement
of Social and Economic Rights in the Developing World,
ed. Varun Gauri and Daniel M. Brinks. Cambridge:
Cambridge University Press.
. 2012. “Human Rights as Demands for
Communicative Action.” Journal of Political Philosophy
20(4): 407–431.
Gauri, Varun, Jeffrey K. Staton, and Jorge Vargas
Cullel. 2013. “A Public Strategy for Compliance
Monitoring,” World Bank Policy Research Working
Paper 6523.
Gloppen, Siri. 2009. “Litigation as a Strategy to Hold
Governments Accountable for Implementing the Right
to Health.” Health and Human Rights 10(2): 21.
Guarnieri, Carlo. 2000. “Judicialization: Borders
between Political and Legal Culture.” In The New
Federalism: Structures and Infrastructures, American
and European Perspectives, ed. Kjell Åke Modéer.
Stockholm: FRN.
Hendley, Kathryn. 2012. “Too Much of a Good Thing?
Assessing Access to Civil Justice in Russia.” Legal Studies
Research Paper Series, 1209, available from http://ssrn.
com/abstract52149076.
Heywood, Mark. 2009. “South Africa’s Treatment Action
Campaign: Combining Law and Social Mobilization to
Realize the Right to Health.” Journal of Human Rights
Practice 1(1): 14.
Hirschl, Ran. 2004. Towards Juristocracy: The Origins and
Consequences of the New Constitutionalism. Cambridge,
MA: Harvard University Press.
. 2008. “The Judicialization of Mega-Politics and
the Rise of Political Courts.” Annual Review of Political
Science 11: 93–118.
Hoffman, Florian, and Fernando R. N. M. Bentes.
2008. “Accountability for Social and Economic
Rights in Brazil.” In Courting Social Justice:
Judicial Enforcement of Social and Economic Rights
in the Developing World, ed. Varun Gauri and
Daniel M. Brinks. New York: Cambridge University
Press.
Horowitz, Donald L. 1977. The Courts and Social Policy.
Washington: Brookings Institution.
June 2014 | Vol. 12/No. 2 391
Articles | The Law’s Majestic Equality?
Horwitz, Morton J. 1976–77 “The Rule of Law: An
Unqualified Human Good?” Yale Law Journal 86(3):
561–66.
Kapiszewski, Diana, and Matthew Taylor. 2012. “Com-
pliance: Conceptualizing, Measuring, and Explaining
Adherence to Judicial Rulings.” Law & Social Inquiry
38(4): 803.
Khosla, Madhav. 2010. “Making Social Rights Condi-
tional: Lessons from India.” International Journal of
Constitutional Law 8: 210.
Landau, David. 2012. “The Reality of Social Rights
Enforcement.” Harvard International Law Journal
53(1): 189–247.
Langford, Malcolm. 2009. Social Rights Jurisprudence:
Emerging Trends in Comparative and International Law.
New York: Cambridge University Press.
Law, David, and Mila Versteeg. 2011. “The Evolution and
Ideology of Global Constitutionalism.” California Law
Review 99(5): 1163–257.
Marshall, T. H. 1950. Citizenship and Social Class, and
Other Essays. Cambridge: Cambridge University
Press.
McCann, Michael. 1994. Rights at Work: Pay Equity
Reform and the Politics of Legal Mobilization. Chicago:
University of Chicago Press.
Moustafa, Tamir. 2003. “Law Versus the State: The
Judicialization of Politics in Egypt.” Law & Social
Inquiry 28(4): 883–930.
Moyn, Samuel. 2010. The Last Utopia: Human Rights in
History. Cambridge, MA: Belknap Press of Harvard
University Press.
Nattrass, Nicoli. 2004. The Moral Economy of Aids in South
Africa. Cambridge: Cambridge University Press.
Norheim, Ole Frithjof, and Siri Gloppen. 2011.
“Litigating for Medicines: How to Assess Impact on
Health Outcomes?” In Litigating Health Rights: Can
Courts Bring More Justice to Health? ed. Alicia Ely
Yamin and Siri Gloppen. Cambridge, MA: Harvard
University Press.
Popova, Maria. 2012. “Post-Communist Courts:
Independence, Accountability, Popular Trust.”
Problems of Post-Communism 59(5): 3–5.
Prado, Mariana M. 2013. “The Debatable Role of Courts
in Brazil’s Health Care System: Does Litigation Harm
or Help?” Journal of Law, Medicine and Ethics 41(1f):
124–37.
Ribeiro, M. C. S. A., R. B. Barata, M. F. Almeida, and
Z. P. Silva. 2006. “Perfil Sociodemográfico e Padrão de
Utilização de Serviços de Saúde para Usuários e Não-
Usuários do SUS-PNAD 2003.” Ciência & Saúde
Coletiva 11(4): 1011.
Rodríguez Garavito, César. 2009. “Assessing the
Impact and Promoting the Implementation of
Structural Judgments: A Comparative Case Study
of ESCR Rulings in Colombia.” Available from
392 Perspectives on Politics
http://www.escr-net.org/usr_doc/Rodriguez_-_
Colombia.pdf.
. 2011. “Beyond the Courtroom: The Impact of
Judicial Activism on Socioeconomic Rights in Latin
America.” Texas Law Review 89: 1669.
Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts
Bring About Social Change? Chicago: University of
Chicago Press.
Scheingold, Stuart A. 1974. The Politics of Rights: Lawyers,
Public Policy and Political Change. Ann Arbor: Univer-
sity of Michigan Press.
Shankar, Shylashri, and Pratap Bhanu Mehta. 2008.
“Courts and Socioeconomic Rights in India.” In
Courting Social Justice: Judicial Enforcement of Social
and Economic Rights in the Developing World, ed.
Varun Gauri and Daniel M. Brinks. New York:
Cambridge University Press.
Shapiro, Martin, and Alec Stone Sweet. 2002. On Law,
Politics and Judicialization. Oxford and New York:
Oxford University Press.
Sieder, Rachel, Line Schjolden, and Alan Angell, eds.
2005. The Judicialization of Politics in Latin America.
New York: Palgrave Macmillan.
Staton, Jeffrey. 2004. “Judicial Policy Implementation in
Mexico City and Mérida.” Comparative Politics 37(1):
41–60.
Stone Sweet, Alec. 1999. “Judicialization and the Con-
struction of Governance.” Comparative Political Studies
32(2): 147–84.
Susanti, Bivitri. 2008. “The Implementation of the Rights
to Health Care and Education in Indonesia.” In
Courting Social Justice: Judicial Enforcement of Social and
Economic Rights in the Developing World, ed. Varun
Gauri and Daniel M. Brinks. New York: Cambridge
University Press.
Tate, C. Neal, and Torbjörn Vallinder. 1995. “The
Global Expansion of Judicial Power: The Judicialization
of Politics.” In The Global Expansion of Judicial Power,
ed. Neal Tate and Torbjörn Vallinder. New York: New
York University Press.
Trochev, Alexei. 2012. “Suing Russia at Home.” Problems
of Post-Communism 59(5): 18–34.
Trubek, David M. 2009. “Developmental States and the
Legal Order: Towards a New Political Economy of
Development and Law.” Discussion Paper No. 1075,
University of Wisconsin Law School.
Trubek, David M., Diogo R. Coutinho, and Mario G.
Schapiro. 2013. “Toward a New Law and
Development: New State Activism in Brazil and the
Challenge for Legal Institutions.” World Bank Legal
Review 4: 281–314.
Tushnet, Mark. 2009. Weak Courts, Strong Rights:
Judicial Review and Social Welfare Rights in
Comparative Constitutional Law. Princeton, NJ:
Princeton University Press.
Vieira, Fabio Sulpino, and Paola Zucchi. 2007. “Distor-
tions to National Drug Policy Caused by Lawsuits in
Brazil.” Revista de Saúde Pública 41(2): 214–22.
Wilson, Bruce M. 2007. “Claiming Individual Rights
through a Constitutional Court: The Example of Gays
in Costa Rica.” International Journal of Constitutional
Law 5(2): 242–57.
. 2009. “Rights Revolutions in Unlikely Places:
Colombia and Costa Rica.” Journal of Politics in Latin
America 1(2): 59–85.
Yamin, Alicia Ely, and Siri Gloppen, eds. 2011.
Litigating Health Rights: Can Courts Bring More
Justice to Health? Cambridge, MA: Harvard
University Press.
June 2014 | Vol. 12/No. 2 393